Kudoba v. Harrington et al

Filing 5

ORDER DISMISSING 1 COMPLAINT WITH LEAVE GRANTED TO AMEND: "IT IS HEREBY ORDERED that: (1) The Complaint is DISMISSED for failure to state a claim, as discussed above. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). Specifically, Defendant s in their official capacities are DISMISSED with prejudice. All other claims are DISMISSED without prejudice. (2) Plaintiff is GRANTED leave to file a proposed amended complaint curing the deficiencies noted above on orbefore May 2, 2012. Failure to timely amend the Complaint and cure its pleading deficiencies will result in AUTOMATIC DISMISSAL of this action for failure to state a claim, and may be counted as strike pursuant to 28 U.S.C. § 1915(g). (3) The Clerk of Court is directed to ma il a form prisoner civil rights complaint to Plaintiff so that he may comply with the directions in this Order. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on April 2, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ERWIN ARTHUR WILHELM KUDOBA,
JR., #A1042165,
Plaintiff,
vs.
SCOTT HARRINGTON, DAVID
SAYURIN, IRENE REVILLA,
DWAYNE KOJIMA,
Defendants.
____________________________

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CIV. NO. 12-00164 LEK/BMK
ORDER DISMISSING COMPLAINT WITH
LEAVE GRANTED TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Erwin Kudoba Jr.’s
prisoner civil rights complaint.1

Although Plaintiff is now

incarcerated at the Halawa Correctional Facility (“HCF”), he
complains of actions that occurred while he was housed at the
Waiawa Correctional Facility (“WCF”).

Plaintiff names WCF Warden

Scott Harrington, Lieutenant David Sayurin, Head Nurse Irene
Revilla, and Substance Abuse Counselor Dwayne Kojima
(collectively, “Defendants”), in their individual and official
capacities.

Plaintiff claims that Defendants violated his

constitutional rights to due process.
The Complaint is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim.
Plaintiff is granted leave to amend, as discussed below.

1

Plaintiff is proceeding in forma pauperis.

See ECF #4.

I. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint in full or in part if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed for failure to state a
claim for (1) lack of a cognizable legal theory; or (2)
insufficient facts under a cognizable legal theory.

Balistreri

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

To

state a claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8 does not demand

detailed factual allegations, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v.

Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
2

on its face.’”

Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

“Determining whether a complaint

states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id. at 1950.

Thus, although a

plaintiff’s specific factual allegations may be consistent with a
constitutional claim, a court must assess whether there are other
“more likely explanations” for a defendant’s conduct.

Id. at

1951.
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true and in the light
most favorable to the plaintiff.
447 (9th Cir. 2000).

Resnick v. Hayes, 213 F.3d 443,

Leave to amend should be granted if it

appears at all possible that the plaintiff can correct the
defects of his or her complaint.

Lopez v. Smith, 203 F.3d 1122,

1130 (9th Cir. 2000).
II.

PLAINTIFF’S CLAIMS

Plaintiff states that Defendants Sayurin, Kojima, and
Revilla, who comprised the adjustment committee during his
disciplinary proceedings at WCF on an unspecified date, denied
him the right to call witnesses at the hearing.
3

Plaintiff

provides no further details concerning these disciplinary
proceedings, such as what the charges against him were, when the
incident occurred, when the hearing took place, or the form of
punishment he received.

Plaintiff says he grieved the misconduct

charges, and Defendant Harrington upheld the adjustment
committee’s decision and denied his grievance.

Plaintiff seeks

an investigation and a new hearing.
III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
A.

Rule 8
Rule 8 of the Federal Rules of Civil Procedure requires

a “short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Although the Federal Rules adopt a flexible pleading policy, a
complaint must give fair notice and state the elements of the
claim plainly and succinctly.

Jones v. Cmty. Redev. Agency of

City of L.A., 733 F.2d 646, 649 (9th Cir. 1984).
4

“All that is

required [by Fed. R. Civ. P. 8(a)] is that the complaint gives
‘the defendant fair notice of what the plaintiff’s claim is and
the ground upon which it rests.’”

Kimes v. Stone, 84 F.3d 1121,

1129 (9th Cir. 1996) (quoting Datagate, Inc. v. Hewlett-Packard
Co., 941 F.2d 864, 870 (9th Cir. 1991)).
“A plaintiff must allege facts, not simply conclusions,
that show that an individual was personally involved in the
deprivation of his civil rights.”
1193, 1194 (9th Cir. 1998).

Barren v. Harrington, 152 F.3d

A person deprives another of a

constitutional right under § 1983, when he or she “‘does an
affirmative act, participates in another’s affirmative acts, or
omits to perform an act which [that person] is legally required
to do that causes the deprivation of which complaint is made.’”
Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175,
1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743
(9th Cir. 1978)).

The “requisite causal connection may be

established” not only by some kind of direct personal
participation in the deprivation, but also by setting in motion
“a series of acts by others which the actor knows or reasonably
should know would cause others to inflict the constitutional
injury.”

Id. (citing Johnson, 588 F.2d at 743–44).
Plaintiff’s claims fail to plainly and succinctly

allege how Defendants are responsible for violating his right to
due process.

Plaintiff’s generalized claims fail to set forth

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sufficient, specific factual allegations linking each named
Defendant to an action that violated Plaintiff’s constitutional
rights.

Plaintiff simply concludes that, because Sayurin,

Kojima, and Revilla denied him witnesses during an adjustment
committee hearing, and Harrington denied his grievance, they
violated his rights to due process.

Plaintiff gives no details

explaining when or why he was charged, why Defendants denied his
witnesses, or most importantly, how the punishment he received
impacted a protected liberty interest, thus entitling him to
procedural due process at his disciplinary hearing.
Rule 8 “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation,” and that is all
Plaintiff provides.

See Iqbal, 129 S. Ct. at 1949.

Plaintiff’s

failure to provide any facts or supporting details does not allow
the court to infer that Defendants violated his constitutional
right to due process.

See Twombly, 550 U.S. at 570.

Plaintiff’s

Complaint fails to state a claim for relief and is DISMISSED with
leave granted to amend, as further analyzed and limited below.
B.

Eleventh Amendment Immunity
Plaintiff names Defendants in their official and

individual capacities.

In Will v. Michigan Department of State

Police, 491 U.S. 58, 64-66 (1989), the Supreme Court held that
states, state agencies, and state officials sued in their
official capacities are not persons subject to civil rights suits
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under 42 U.S.C. § 1983.

Further, the Eleventh Amendment

prohibits federal jurisdiction over suits against the state or a
state agency unless the state or agency consents to the suit.
See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53 (1996);
Pennhurst State School and Hospital v. Halderman, 465 U.S. 89,
100 (1984); Quern v. Jordan, 440 U.S. 332, 342 (1979).

State

officers acting in their official capacities receive the same
immunity as the government agency that employs them.

Hafer v.

Melo, 502 U.S. 21 (1991).
Thus, the Eleventh Amendment bars Plaintiff’s damages
claims against Defendants in their official capacities.

See Doe

v. Lawrence Livermore Natl. Lab., 131 F.3d 836, 839 (9th Cir.
1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1996); Pena
v. Gardner, 976 F.2d 469, 472 (1992).

Defendants in their

official capacities are DISMISSED with prejudice.
C.

Due Process
Plaintiff alleges that Sayurin, Kojima, and Revilla

violated his right to due process when they refused to allow him
to call witnesses at his disciplinary hearing.

He alleges

Harrington violated his rights when Harrington upheld the
decision by denying Plaintiff’s grievance.
1.

The Disciplinary Hearings
The Due Process Clause protects prisoners from the

deprivation of liberty without due process of law.
7

Wolff v.

McDonnell, 418 U.S. 539, 556 (1974).

To state a due process

claim, a plaintiff must first establish the existence of a
liberty interest.

Liberty interests may arise from the Due

Process Clause itself or from state law.
U.S. 460, 466-68 (1983).

Hewitt v. Helms, 459

Inmates’ liberty interests are

“generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force,
nonetheless impose[] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations
omitted).

“As long as the conditions or degree of confinement to

which the prisoner is subjected is within the sentence imposed
upon him and does not otherwise violate the Constitution, the Due
Process Clause does not in itself subject an inmate’s treatment
by prison authorities to judicial oversight.”

Montanye v.

Haymes, 427 U.S. 236, 242 (1976).
Thus, a prisoner may challenge a disciplinary action
that (1) deprives or restrains a liberty interest in some
“unexpected manner,” directly under the Due Process Clause, or
(2) “imposes some ‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’”
See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing
Sandin, 515 U.S. at 483–84)).

8

While not explicit in the Complaint, it is possible
that Plaintiff was transferred from WCF to HCF because of the
disciplinary charges, and bases his due process claims on this
transfer.

Plaintiff has no protected liberty interest in freedom

from transfer between prisons, however, even if this transfer
meant that Plaintiff was removed from a WCF work furlough
program.

See Toussaint v. McCarthy, 801 F.2d 1080, 1094–95 (9th

Cir. 1986) (holding that, under the pre-Sandin mandatory language
framework, inmates have no constitutional right to participate in
prison work programs); Baumann v. Arizona Dep’t of Corr., 754
F.2d 841, 846 (9th Cir. 1985); cf., Coakley v. Murphy, 884 F.2d
1218, 1221 (9th Cir. 1989) (no liberty interest based on a
transfer from work release center back to prison).

Nor does

Plaintiff have a right to early release, something that he may
have been working toward at WCF.

See Greenholtz v. Inmates of

Neb. Penal and Corr. Complex, 442 U.S. 1, 7-11 (1979); see also
Neal v. Shimoda, 905 F. Supp. 813, 818 (D. Haw. 1995), aff’d in
part rev’d in part, 131 F.3d 818 (9th Cir. 1997) (no state
created liberty interest in Hawaii to early release).

Plaintiff

fails to state a claim under the Due Process Clause itself.
Turning to whether Plaintiff is entitled to due process
protections based on a state-created liberty interest, Plaintiff
provides no facts suggesting that the punishment imposed after
his disciplinary hearing resulted in atypical or significant

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hardship to him in comparison to the normal incidents of prison
life at WCF.

Plaintiff provides no facts indicating the type,

degree, and longevity of the punishment he received, or how that
punishment compares to confinement in the general population or
administrative segregation at WCF.

Plaintiff does not say that

he received a term of disciplinary segregation, but typically,
placement in segregated housing does not implicate a protected
liberty interest.

See Serrano v. Francis, 345 F.3d 1071, 1078

(9th Cir. 2003); Hewitt, 459 U.S. at 466-68 (holding that the Due
Process Clause does not confer a liberty interest in being
confined in the general prison population).

This is because

placement in segregation falls within the terms of confinement
ordinarily contemplated when a prison sentence is imposed, and so
normally “comport[s] with the prison’s discretionary authority.”
Toussaint, 801 at 1091-92.
Plaintiff provides no facts that support a finding of
atypical or significant hardship and therefore fails to state a
claim for the deprivation of due process under state law relating
to his disciplinary hearing.
2.

Grievance Procedures
Plaintiff suggests that Harrington denied him due

process when he upheld the adjustment committee’s findings and
denied his grievance.

Harrington’s handling of Plaintiff’s

grievance is an insufficient basis on which to state a due

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process claim.

“Ruling against a prisoner on an administrative

complaint does not cause or contribute to the [underlying]
violation.”

George v. Smith, 507 F.3d 605, 609-10 (7th Cir.

2007) (holding that only persons who cause or participate in
civil rights violations can be held responsible); Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding that prison
officials whose only roles involved the denial of the prisoner’s
administrative grievances cannot be held liable under § 1983);
Wright v. Shapirshteyn, No. CV 1-06-0927-MHM, 2009 WL 361951, *3
(E.D. Cal. Feb. 12, 2009) (noting that “where a defendant’s only
involvement in the allegedly unconstitutional conduct is the
denial of administrative grievances, the failure to intervene on
a prisoner’s behalf to remedy alleged unconstitutional behavior
does not amount to active unconstitutional behavior for purposes
of § 1983"); Velasquez v. Barrios, No. 07cv1130-LAB (CAB), 2008
WL 4078766, *11 (S.D. Cal. Aug. 29, 2008) (“An official’s
involvement in reviewing a prisoner’s grievances is an
insufficient basis for relief through a civil rights action.”).
Accordingly, Plaintiff’s allegations are insufficient to state a
claim against Harrington.
IV.

LEAVE TO AMEND

The Complaint is DISMISSED for failure to state a claim
as discussed above.

Plaintiff may file a proposed amended

complaint on or before May 2, 2012.
11

The proposed amended

complaint must cure the deficiencies noted above and demonstrate
how the conditions complained of resulted in a deprivation of his
federal constitutional or statutory rights.
The court will not refer to the original pleading to
make any amended complaint complete.

Local Rule 10.3 requires

that an amended complaint be complete in itself without reference
to any prior pleading.

Defendants not named and claims not

realleged in an amended complaint are deemed waived.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

See King v.

Furthermore, as a

general rule, an amended complaint supersedes the original
complaint.

See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
V.

28 U.S.C. § 1915(g)

If Plaintiff fails to file an amended complaint
correcting the deficiencies identified in this Order, this
dismissal may count as a “strike” under the “3-strikes” provision
of 28 U.S.C. § 1915(g).

Under the 3-strikes provision, a

prisoner may not bring a civil action or appeal a civil judgment
in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility,
brought an action or appeal in a court of the
United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious
physical injury.
12

28 U.S.C. § 1915(g).
VI.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)

The Complaint is DISMISSED for failure to state a

claim, as discussed above.
1915A(b)(1).

See 28 U.S.C. § 1915(e)(2)(b) &

Specifically, Defendants in their official

capacities are DISMISSED with prejudice.

All other claims

are DISMISSED without prejudice.
(2)

Plaintiff is GRANTED leave to file a proposed

amended complaint curing the deficiencies noted above on or
before May 2, 2012.

Failure to timely amend the Complaint

and cure its pleading deficiencies will result in AUTOMATIC
DISMISSAL of this action for failure to state a claim, and
may be counted as strike pursuant to 28 U.S.C. § 1915(g).
(3)

The Clerk of Court is directed to mail a form

prisoner civil rights complaint to Plaintiff so that he may
comply with the directions in this Order.
IT IS SO ORDERED.
//

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DATED: Honolulu, Hawaii, April 2, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Kudoba v. Harrington, et al., 1:12-00164 LEK-BMK; Order
Dismissing Complaint With Leave Granted to Amend;
psa/Screening/dmp/2012/Kudoba 12-164 lek (dsm ftsc, R8, due
proc. lvamd)

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